By Ahmad Hathout
Apple is asking the Federal Court of Appeal to review whether the CRTC is inappropriately demanding the disclosure of what it calls competitively sensitive financial information as part of the implementation of the Online Streaming Act.
The California-based music and TV streaming giant is arguing that the CRTC has not explained in its November decision on the definition of Canadian programming why the streamers need to publicly disclose annual contributions they make to domestic content and their gross Canadian broadcasting revenues.
“The decision to presumptively disclose … has not reasonably been explained to be and is not rationally connected with the stated statutory objective of ensuring ‘that broadcasting undertakings meaningfully support Canadian programs and talent’ or the stated objective of the modernization of the definition of ‘Canadian program,’” Apple says in its leave to appeal application, filed late last week.
The company argues that the publication rule conflicts with the confidentiality regime of the Online Streaming Act, which demands an iterative process for dealing with confidential information that, in short, allows the company to ask for confidentiality as a first step. If the CRTC elects to disclose, it must give the party subject to that order an opportunity to be heard, Apple argues.
While the law provides “presumptive protection” for such information, the CRTC’s rule imposes “presumptive disclosure,” Apple argues, adding it flies in the face of the case-by-base analysis on which the regulator must embark to make those decisions while leaving companies with no procedural recourse as provided by section 25.3 of the new Broadcasting Act.
This is the same argument made by other large foreign streamers under the Motion Picture Association – Canada (MPAC) banner. They argue that by declaring certain financial information “public,” the CRTC is effectively pre-empting their ability to designate certain competitively sensitive information as confidential as is their right under that section of the law.
The CRTC, in other words, has overstepped its jurisdiction by supplanting the will of Parliament, Apple claims to the court, which is being urged to set aside that part of the decision if it elects to hear its case.
Apple had urged the CRTC in a January 2025 submission to avoid publishing that financial information at a company-specific level. At most, the music and television streamer said the commission should simply publish aggregated data at the industry level.
“Apple is very concerned regarding the commercial sensitivity of its revenue and programming expenditure information, over which it maintains strict confidentiality,” it said in that submission. “The current market for online undertakings is highly competitive, with online and traditional undertakings all vying for both customers as well as common production resources, which makes the information far more competitively sensitive than information that previously may have been published by Canadian broadcasters.”
Apple raises the same concern as MPAC, which argues that the CRTC – in an effort to protect financially sensitive information – has already given these foreign streamers the opportunity to go through a third-party administrator to distribute money to Canadian content funds as part of their five per cent base contribution obligation.
Apple claims it has had correspondence earlier in the year with the CRTC in which the regulator recognized that some of the information the company has to divulge would need to be subject to confidentiality provisions.
The company also notes that similar types of financial information that the CRTC hopes to make public has been deemed confidential by the Federal Court of Appeal in the company’s challenge to the base contribution decision.
“No analysis or justification is provided regarding how Apple’s recognized (by both Commission and the Federal Court of Appeal) compelling interest in maintaining confidentiality over its confidential information is outweighed by any third party’s interest in having that information disclosed,” Apple says in its leave application.
Apple has also used the CRTC’s November decision to argue that the regulator erred by forcing the base contribution requirement on streamers before it defined what makes programming “Canadian.”
Last week’s deadline to challenge the November decision drew another appeal request on behalf of the Canadian Media Producers Association, which argues that the CRTC’s minimum copyright ownership threshold of 20 per cent is too low to give Canadians control of their works.
